Summary: We will not investigate this complaint about highway repair and maintenance because the court is better placed to consider the complaint.

The complaint

1. Mr Y complained the Council has failed to properly repair a section of pavement near his home on which he fell on hurt himself in May 2024. He also complained the Council’s insurer used standard letters in the process to deny his claim for personal injury and used legal jargon which made it difficult for him to make a claim.
2. Mr Y says he was injured in the accident and feels the Council should pay him compensation and make it easier for people to make a claim. He would also like the Council to mend the pavement.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. One of the issues we cannot investigate is negligence or personal injury claims. We cannot decide if the Council should be held responsible for the injuries Mr Y suffered when he fell on the pavement. We also cannot award compensation for any injuries suffered. These are legal claims which may only be decided by insurers or the courts.
7. Mr Y says the Council’s insurer has denied his claim. Only a court can now decide whether this decision is correct or not and if it upholds Mr Y’s claim for personal injury. We cannot decide this. As the court can do this, it is better placed to consider Mr Y’s complaint than us. Mr Y would need to seek legal advice if he wants to pursue the claim and try to take the claim to court. We will not investigate this complaint.
8. Mr Y has also complained about the Council’s insurer using standard letters and legal jargon. Mr Y says this made it hard for him to make a claim on the Council’s insurance. As Mr Y has been able to make a claim, even if this has then been denied, we would say that any injustice would not be significant enough to justify our involvement. This is because, even though he may have struggled he was still able to have his claim considered and now still has the opportunity to challenge this if he wishes through the courts. We will not investigate.
9. Mr Y has also complained that, despite the Council’s response to his complaint saying it had repaired the pavement, the pavement is still in disrepair.
10. The Council as a local highways authority has a duty in law to maintain the roads and pavements it is responsible for. The Council is expected to monitor the condition of the highways and carry out repairs where necessary. But, the level of maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
11. If Mr Y considers the Council has failed to maintain a highway, such as the pavement, it is responsible for, he can apply to the Magistrates Court for an order to be made under section 56 of the Highways Act 1980. This order requires the Council to carry out the work needed.
12. Mr Y may use this process to try to get the Council to repair the pavement. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service. Also, reasonable adjustments can be made for access to the service if this is needed, for example to allow a family member to act as a representative. It is therefore reasonable for Mr Y to be expected to use his right to go to court about this matter. He may wish to seek independent legal advice, such as through Citizens Advice.
13. Further, the court is in the best position to decide whether the Council has met its legal duty to maintain the highway. Unlike the Ombudsman, the court can order the Council to do the required work, where we would only be able to recommend the Council considers if the work is needed, so it is better placed than us to consider the complaint. We will therefore not investigate.

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Final decision

14. We will not investigate Mr Y’s complaint because the court is better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman